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IN THE SUPREME COURT OF THE STATE OF IDAHO

Docket No. 49772

DEBRA ABELL,

 Plaintiff-Respondent,

v.

STEVEN ABELL,

 Defendant-Appellant.

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Boise, May 2023 Term

Opinion Filed: August 22, 2023

Melanie Gagnepain, Clerk

Appeal from the District Court of the First Judicial District of the State of Idaho, 

Kootenai County. John T. Mitchell, District Judge.

The judgment of the district court is vacated, its decisions underlying its judgment

are also vacated, and the case is remanded for further proceedings.

Lukins & Annis, P.S., Coeur d’Alene, Idaho, for Appellant. Edward W. Kok

submitted argument on the briefs.

Witherspoon Brajcich McPhee, PLLC, Coeur d’Alene, Idaho, for Respondent. 

Mark A. Ellingsen submitted argument on the briefs.

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BRODY, Justice. 

This appeal concerns a non-summary contempt proceeding arising out of a divorce, and 

former litigation in Oregon over spousal support Steven Abell owed his ex-wife Debra Abell. 

After a judgment of contempt was entered against him in Oregon for failure to pay support, 

Steven allegedly continued to refuse to pay Debra. Roughly one year later, Debra brought the 

underlying contempt proceeding, charging Steven with contempt for failure to comply with the 

payment terms in the Oregon contempt judgment, and requesting relief from the district court in 

northern Idaho, where Steven resided. The district court found Steven in willful contempt of the 

Oregon contempt judgment, and imposed an unconditional sanction of $5,000, making both 

determinations through a summary judgment procedure. Steven appeals, assigning error to the
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sanction imposed, and to other decisions by the court in the underlying proceeding.

For the reasons set forth below, the sanction imposed by the district court was criminal in 

nature, and it was imposed in error because Steven was not afforded certain protections owed an

alleged contemnor in a criminal contempt proceeding. In addition, regardless of whether a civil 

or criminal sanction is sought or imposed, when an alleged contemnor is not in default and 

denies the charge of contempt, the non-summary contempt proceeding cannot be adjudicated 

through a summary judgment procedure. Idaho Rule of Civil Procedure 75 requires a trial. 

Accordingly, the district court’s judgment of contempt is vacated, its decisions underlying its 

judgment are also vacated, and the case is remanded for further proceedings that must start anew, 

at the initial pleading stage, in order to proceed appropriately.

I. FACTUAL AND PROCEDURAL BACKGROUND

Debra Abell and Steven Abell were married for roughly thirty-one years in Oregon 

before they stipulated to a dissolution of their marriage, entered on June 9, 2015 (“Dissolution 

Judgment”). At the time of their divorce, Debra was 54 with an earning capacity of minimum 

wage, and Steven was 60 with an active income of $16,666 per month. As a part of their divorce,

Steven agreed to, among other things, pay Debra $3,500 per month in spousal support. Steven

was to pay Debra spousal support “until further order of the court, or death of a party[,]” with 9%

interest accruing from the due date until paid if delinquent.

Two years later, in December 2017, Steven married Pamela. Another two years after that, 

Steven and Pamela moved to Idaho, and purchased a new residence in Post Falls, Idaho, in

March 2019. Steven purportedly quitclaimed any interest in the new residence to Pamela the day 

of the purchase. Roughly one month after moving to Idaho, in April 2019, Steven stopped paying 

Debra spousal support and filed a motion with the Oregon circuit court to terminate his spousal 

support obligation. During the ensuing proceedings, and even after an order to compel discovery 

issued by the Oregon circuit court, Steven openly refused to produce documents requested during 

discovery regarding his assets and those of his second wife, Pamela. After a hearing, the Oregon 

circuit court found that Steven had “willfully” violated the order to compel and left the court 

with “no alternative but to order extreme measures” based on his “conduct and because of the 

extreme prejudice to [Debra] in litigating” against Steven’s motion to terminate spousal support. 

From this, the Oregon circuit court dismissed Steven’s motion with prejudice and entered a
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judgment against Steven in favor of Debra for her attorney’s fees and costs in the amount of

$16,091.50, plus interest of 9% per year.

Two months later, in November 2020, the Oregon circuit court held a hearing on an 

outstanding motion from Debra to hold Steven in contempt related to his failure to pay spousal 

support to Debra over roughly the last year and a half. Steven knew of the hearing, but

“voluntarily” chose not to appear. Two months after the hearing, in January 2021, the Oregon 

circuit court issued its written decision (“Oregon Contempt Judgment”) and found Steven in 

contempt for failure to pay owed spousal support from April 23, 2019, through to the date of the 

contempt hearing (November 12, 2020), totaling $71,200.84. 

The Oregon circuit court also found that Steven had the present “ability to pay his 

spousal support obligation” to Debra based on the following findings: Steven “voluntarily quit

his job in February 2019 making almost $200,000 per year without justification or reason”; 

Steven’s “claim that he had depression and anxiety that prevented him from continuing his job 

from which he voluntarily resigned is not supported by the evidence”; Steven had a joint bank 

account with his second wife, Pamela, with deposits “that averaged over $22,000 per month from 

January 2018 through June 2019”; Steven’s second wife, Pamela, was earning over $130,000 per 

year; Pamela had purchased a house in Post Falls, Idaho, for her and Steven; and Steven had a 

“401(k) plan with $47,000 in it as of December 31, 2019,” which he could have “withdrawn 

without penalty to pay” his spousal support owed to Debra.

The Oregon circuit court ordered Steven to, among other things, pay the outstanding

$71,200.84 owed within 60 days. The circuit court also entered a civil sanction against Steven 

for $1,000 that would be conditionally imposed every 30 days Steven failed to pay the 

outstanding amount after those 60 days, plus interest of 9% per year. A few months later, the

circuit court entered a supplemental judgment, awarding Debra $6,690 for incurred attorney’s 

fees and costs, plus interest of 9% per year (“Oregon Supplemental Judgment”). 

While this litigation was ongoing in Oregon, on August 3, 2020, Debra filed an Affidavit 

and Notice of Filing Foreign Judgment to domesticate—in Idaho—the Oregon judgment

dissolving the marriage (the Dissolution Judgment). Her filing attached the Dissolution 

Judgment, which provided for the underlying divorce and award of spousal support to Debra.

Roughly one and a half years later (one year after the Oregon Contempt Judgment was entered),

on January 4, 2022, Debra filed an Affidavit and Notice of Filing Foreign Judgments to 
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domesticate three other Oregon judgments in Idaho. The Oregon judgments in that filing related 

to Debra’s attorney’s fees and costs awarded in the Oregon litigation, with one of the judgments 

awarding Debra fees and costs in the amount of $16,091.50, as referenced above.

Two days later, on January 6, 2022, Debra filed another Affidavit and Notice of Filing 

Foreign Judgments, this time including the Oregon Contempt Judgment and the Oregon 

Supplemental Judgment to be domesticated in Idaho. Three months later, on March 2, 2022,

Debra commenced the underlying contempt proceeding by filing a “Motion/Charge for NonSummary Contempt” against Steven, and the above filings were later consolidated into one case, 

the underlying action now on appeal. 

Debra’s motion included one charge of contempt: Steven was “violating the terms and 

conditions of [the Oregon Contempt Judgment] by refusing to comply with the court ordered 

payment terms related to spousal support.” According to Debra’s declaration, filed concurrently 

with her motion and charge of contempt, Steven had failed in the last year to make any payments 

towards the principal sum of $71,200.84 in spousal support due under the Oregon Contempt 

Judgment. Although she did not bring a separate charge of contempt for failure to pay other 

support under the Dissolution Judgment, Debra further alleged that Steven owed her an 

additional $54,250 in spousal support from the date of the Oregon Contempt Judgment through 

February 28, 2022, i.e., two days before she filed her motion.

Notably, Debra’s motion did not charge Steven with contempt for failure to pay the 

$16,091.50 judgment for attorney’s fees and costs that she was awarded in the Oregon litigation,

or the $6,690 supplemental judgment in fees and costs she was awarded related to the Oregon 

Contempt Judgment. It is unclear from the record whether Steven ever paid these domesticated 

Oregon judgments. Otherwise, related to the one charge of contempt Debra did bring, Debra’s 

motion requested that the Idaho district court impose “civil sanctions” against Steven as provided 

by Idaho Rule of Civil Procedure 75 and Title 7, Chapter 6 of the Idaho Code, as well as an

award for any attorney’s fees and costs incurred in prosecuting her charge of contempt.

Although direct evidence of it is not in the record, on March 11, 2022, seven days after 

Debra filed her contempt motion and charge, Steven apparently made a partial payment to Debra. 

The amount of this payment is unclear. At one point in her briefing, Debra states the partial 

payment was $49,350.92, but in her later declaration in support of contempt sanctions against 

Steven, she represents the partial payment was $10,254.00. Nevertheless, roughly two weeks 
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after this partial payment, on March 28, 2022, the district court in Idaho held an “arraignment” 

hearing at which Steven made his initial appearance pro se and indicated that he was 

“contesting” the new charge of contempt. At the hearing, the district court only advised Steven 

of the risks of representing himself pro se, i.e., that Steven would be assumed to have working 

knowledge of the Idaho Rules of Civil Procedure, applicable statutes, and applicable case law. 

The district court did not advise him of any other rights. Otherwise, the district court, as well as 

Debra in her later briefing, treated Steven’s “contesting” of the charge as a general denial and the 

matter was set for trial on May 9, 2022, roughly one and a half months later. The district court 

did not specify if it was setting a bench trial or jury trial.

Fourteen days after the “arraignment” hearing, on April 11, 2022, Debra filed a “Motion 

for Judgment on the Pleadings” under Idaho Rule of Civil Procedure 12(c), and argued that based 

on the evidence in the record along with Steven’s failure to timely assert any affirmative 

defenses to the contempt charge under Rule 75(h), she was entitled to judgment as a matter of 

law because it was undisputed that Steven was “again in contempt” for failing to comply with the 

payment terms of the Oregon Contempt Judgment.

Four days later, on April 15, 2022, counsel appeared for Steven, and filed a document 

denying the charge of contempt and asserting two affirmative defenses under Rule 75(h): Steven

was “[1] unable to comply with the [Oregon Contempt Judgment] at the time of the violation 

and/or [2] lacks the present ability to comply with the [Oregon Contempt Judgment].” Seven 

days later, on April 22, 2022, Steven responded to Debra’s “Motion for Judgment on the 

Pleadings” through his counsel and argued that based on his general denial to the contempt

charge, Debra’s motion must be denied because there is a genuine dispute of fact on contempt 

for trial. Four days after that, Steven’s counsel formally requested leave from the district court 

under Rule 75(h)(1) to assert Steven’s two affirmative defenses.

Two days later, at a hearing on April 28, 2022, relying only on Debra’s declaration and 

the Oregon Contempt Judgment already in the record, the district court granted Debra’s “Motion 

for Judgment on the Pleadings” and denied Steven’s motion for leave to assert two affirmative 

defenses. Steven was not permitted to present testimony or evidence at this hearing. The district 

court then ordered Debra’s counsel to prepare the written order, which later reflected that the 

district court had found Steven in contempt because he had “willfully refused to comply with the 

spousal support payment terms ordered in the Oregon Contempt Judgment[.]”
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Four days after the hearing, on May 2, 2022, Steven executed a “Postnuptial Agreement” 

with his second wife, Pamela, and his counsel notarized the document. Curiously, the Postnuptial 

Agreement indicates it was “made” on April 15, 2022—two weeks earlier, the same day Steven’s

counsel appeared, and before Steven was found in contempt at the hearing on April 28, 2022.

The Postnuptial Agreement purports to memorialize a former separation of Steven’s debts and 

assets from Pamela’s debts and assets, and also purports to transfer all of Steven’s community 

property interests in real property, wages, income, earnings, and retirement benefits, acquired 

during his second marriage with Pamela, to Pamela as her sole and separate property. 

Three days later, on May 5, 2022, Debra and her counsel filed declarations in support of a 

memorandum requesting the “civil” sanction of incarceration conditioned on Steven purging 

himself of his contempt, i.e., conditioned on Steven complying with the payment terms

underlying the Oregon Contempt Judgment. According to Debra, Steven owed $139,892.58 in 

total unpaid spousal support with accrued interest, dating from March 2019 to April 2022, i.e., 

both including and adding to the balance owed under the Oregon Contempt Judgment. Because

the single contempt charge related only to Steven’s failure to pay the principal sum of 

$71,200.84 in spousal support, along with accrued interest and the $1,000 fines, the record on 

appeal is unclear on the true balance Steven owed to Debra.

Nevertheless, four days later, on May 9, 2022, the district court held a hearing to 

determine what sanction to impose, and to consider a motion from Steven asking the court to 

reconsider its grant of Debra’s Motion for Judgment on the Pleadings. Steven was not permitted 

to present evidence or testimony at this hearing. Instead, the district court received oral argument 

and briefing, denied Steven’s motion for reconsideration, and essentially reiterated its finding 

that Steven was in contempt. As for the sanction against Steven, the district court declined to 

impose conditional incarceration, reasoning that such a sanction was “criminal” in nature and 

could not be imposed based on the process afforded Steven in the underlying proceeding. 

Instead, the district court imposed an unconditional fine of $5,000, labeled it a “civil” 

sanction, and awarded Debra reasonable attorney’s fees and costs. The district court again 

ordered Debra to prepare a written order, which in two separate written orders, reflected the 

denial of Steven’s motion for reconsideration, the denial of leave for Steven to assert affirmative 

defenses under Rule 75(h)(1), the finding of “willful” contempt, the unconditional sanction, and 

the award of attorney’s fees and costs to Debra. Steven timely appealed on multiple grounds.
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II. STANDARD OF REVIEW

“The sanction or penalty imposed under a contempt order is reviewed under an abuse of

discretion standard.” In re Weick, 142 Idaho 275, 278, 127 P.3d 178, 181 (2005). However,

whether the sanction imposed was civil or criminal in nature is reviewed de novo, and relatedly,

whether the underlying proceedings conformed to the applicable federal constitutional

protections attendant to the nature of the sanction imposed is also reviewed de novo. See Camp v.

E. Fork Ditch Co., 137 Idaho 850, 860–66, 55 P.3d 304, 314–20 (2002). As for the proper 

procedure governing non-summary contempt proceedings under Idaho Rule of Civil Procedure 

75, “[t]his Court exercises free review over questions regarding the interpretation of the Idaho

Rules of Civil Procedure.” Ward v. State, 166 Idaho 330, 332, 458 P.3d 199, 201 (2020) (quoting 

Haight v. Idaho Dep’t of Transp., 163 Idaho 383, 387, 414 P.3d 205, 209 (2018)).

III. ANALYSIS

Steven assigns four points of error to the non-summary contempt proceeding below and

the judgment of contempt entered. First, Steven argues that the district court erred by granting 

“judgment on the pleadings” to Debra that Steven was willfully in contempt for failing to comply 

with the Oregon Contempt Judgment, and by declining to hold a trial, when Steven generally 

denied the charge of contempt to create a disputed issue of material fact. Second, Steven 

maintains the district court abused its discretion when it denied his motion for leave to assert 

untimely affirmative defenses to the charge of contempt outside the seven-day window provided 

by Idaho Rule of Civil Procedure 75(h). Third, Steven argues the district court erred in finding 

Steven’s motion for reconsideration on Debra’s motion for judgment on the pleadings untimely, 

and by further denying it on the merits. Finally, Steven contends the district court erred when it 

imposed an unconditional monetary sanction, which was a criminal sanction—not a civil 

sanction—in the absence of the process required for imposing criminal sanctions under Rule 75. 

Steven is correct as to his fourth assignment of error. The district court erred in imposing

an unconditional monetary sanction, i.e., a criminal sanction, without affording Steven the

underlying process required by Rule 75 and the federal constitution. Due to the exceptional

nature of contempt proceedings, the error of imposing a criminal sanction through what was 

effectively a summary judgment adjudication unavailable under Rule 75 infected the entire 

underlying proceeding. Thus, the district court’s judgment of contempt is vacated, its decisions 

underlying its judgment are vacated, and the contempt charge against Steven must begin anew on 
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remand, from the initial pleading stage. Because we reach this conclusion as to Steven’s fourth 

assignment of error, we need not address his remaining alleged errors.

A. The district court erred in imposing an unconditional monetary sanction, which was 

criminal in nature, because the underlying process was fundamentally deficient. 

“[A] contempt proceeding is sui generis,” i.e., of its own class. State v. Palmlund, 95 

Idaho 150, 153, 504 P.2d 1199, 1202 (1972). It is “an extraordinary proceeding and should be 

approached with caution.” In re Weick, 142 Idaho at 281, 127 P.3d at 184. Unlike other 

proceedings that are wholly civil or criminal in nature, Gompers v. Buck’s Stove & Range Co., 

221 U.S. 418, 441 (1911), the ultimate civil or criminal nature of a non-summary contempt 

proceeding, which results in a finding and judgment of contempt, “is based upon the penalty 

imposed at the conclusion of the proceedings.” Camp, 137 Idaho at 864, 55 P.3d at 318

(emphasis added). In other words, a contempt proceeding is inherently rear-facing or reflective, 

and “[w]hether contempt is criminal or civil does not depend upon the nature of the lawsuit in

which the contempt proceedings are brought.” See id. at 862, 55 P.3d at 316. Because of this, the 

nature of the sanction ultimately imposed—civil or criminal—is critical; the sanction imposed 

reflectively determines what federal constitutional rights were applicable and required during the 

earlier and underlying proceedings. Id. at 860–61, 55 P.3d at 314–15 (listing the federal 

constitutional rights that apply to criminal contempt proceedings).

Whether the imposed contempt sanction, as well as the underlying contempt proceeding,

are criminal or civil in nature turns on whether the sanction is unconditional or conditional. Id. at

863–65, 55 P.3d at 317–19. “[A]n unconditional penalty is a criminal contempt sanction, and a

conditional penalty is a civil contempt sanction.” Id. at 863, 55 P.3d at 317 (emphasis added)

(citation omitted) (footnoted omitted). A sanction is criminal and “unconditional if the 

contemnor cannot avoid any sanction by complying with the court order violated.” Id. Idaho 

Code section 7-610 provides for “criminal contempt” sanctions in the form of a “fine of up to 

$5,000 and/or by incarceration in jail for up to five days, unless the contempt is nonpayment of

child support in which case the jail sentence can be up to thirty days.” Camp, 137 Idaho at 865, 

55 P.3d at 319.

In contrast, a sanction is civil and “conditional if the contemnor can avoid any sanction, 

including probation, by doing the act he had been previously ordered to do.” Id. at 864, 55 P.3d 

at 318. Civil contempt sanctions can include incarceration conditioned on purging the contempt, 
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I.C. § 7-611; a daily fine conditioned on the same, Camp, 137 Idaho at 864, 55 P.3d at 318, or 

both. Incarceration is civil in nature only “[i]f the contempt consisted of the failure to perform an 

act that is still within the contemnor’s power to perform[.]” Id. at 865, 55 P.3d at 319 (emphasis 

added); see I.C. § 7-611 (allowing conditional imprisonment if the “contempt consists in the 

omission to perform an act which is yet in the power of the person to perform”). In other words,

for a sanction to be “civil” there must be a factual basis for finding that the contemnor “carr[ies]

the key of his prison in his own pocket[,]” Maggio v. Zeitz, 333 U.S. 56, 68 (1948) (alteration 

added) (citation omitted), or has “it in his power to avoid any penalty” imposed, Hicks ex rel. 

Feiock v. Feiock, 485 U.S. 624, 633 (1988). Thus, for a contempt sanction and the underlying 

contempt proceeding to be “civil,” the trial court must make a finding, supported by substantial 

evidence, that the contemnor has a “present ability to comply with the order violated.” Camp, 

137 Idaho at 865, 55 P.3d at 319 (emphasis added).

In this case, after finding that Steven “willfully refused to comply” with the Oregon 

Contempt Judgment, the district court’s written decision imposed an unconditional “fine of 

$5,000” and ordered Steven to pay “said fine within ten (10) days” of the entry of judgment. The 

district court’s ruling from the bench at the May 9, 2022, hearing was no different, where the 

district court specified that the fine was “not conditional; it’s imposed[.]” Although the district 

court inaccurately labeled the fine as a “civil sanction related to [Steven’s] non-summary 

contempt of court,” the labels “affixed either to the proceeding or to the relief” do not control or 

“defeat the applicable protections of federal constitutional law” in a non-summary contempt 

proceeding. Camp, 137 Idaho at 863, 55 P.3d at 317 (quoting Hicks, 485 U.S. at 631). Here, with 

the sanction imposed, there was nothing Steven could do to avoid paying the $5,000 fine. 

Accordingly, the sanction imposed by the district court was unconditional and thereby criminal 

in nature. See Int’l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 829 (1994)

(“[A] flat, unconditional fine, totaling even as little as $50 announced after a finding of contempt

is criminal if the contemnor has no subsequent opportunity to reduce or avoid the fine through

compliance.” (quotation marks omitted)).

Because a criminal contempt sanction was imposed, the underlying proceedings were 

required to afford Steven the numerous protections guaranteed under the federal constitution that 

are applicable in non-summary criminal contempt proceedings. Camp, 137 Idaho at 860, 55 P.3d 

at 314. For example, unless the record otherwise reveals that Steven was “quite aware that a 
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criminal contempt was charged[,]” United States v. United Mine Workers of Am., 330 U.S. 258,

297 (1947), Steven had the right to notice at his arraignment hearing that a criminal sanction was 

being sought, Gompers, 221 U.S. at 445–46; see I.R.C.P. 75(f)(1)(A). Steven also had the right 

to a public trial, to cross-examine witnesses, and “to call witnesses to testify both in complete 

exculpation or in extenuation of the offense and in mitigation of the penalty to be imposed.” 

Camp, 137 Idaho at 860–61, 55 P.3d at 314–15 (citing cases); see I.R.C.P. 75(i)(2) (listing the 

trial rights that must be afforded to impose a criminal sanction in a contempt proceeding); 

I.R.C.P. 75(l)(2) (explaining the right to call witnesses in mitigation, to be heard in mitigation,

and to otherwise make amends with the court before a criminal sanction is imposed).

Notably, Steven also would have had the right to a jury trial if the “maximum penalty 

authorized by law, or actually imposed, exceeds six months [of] incarceration” or if the trial 

court imposed “consecutive sentences totaling more than six months in length[.]” Camp, 137 

Idaho at 860, 55 P.3d at 314; see also I.R.C.P. 75(i)(1) (“The trial will be before the court 

without a jury, provided that if the respondent is charged with multiple counts tried in one 

proceeding, the court cannot impose consecutive criminal sanctions totaling more than 6 months 

in jail unless the respondent was given, or voluntarily waived, the right to a jury trial.”).

Here, there is nothing in the record showing that Steven was advised by the district court, 

or was even aware, that criminal contempt was charged. To the contrary, Debra initiated the 

underlying proceedings with a motion and charge of contempt that requested “civil” sanctions.

Consistent with this, throughout the proceedings, Debra requested the “civil” sanction of

conditional incarceration based on Steven’s alleged present ability to comply with the payment 

terms of the Oregon Contempt Judgment. Steven was also not afforded the right to a public trial, 

to cross-examine witnesses, or to put on evidence or call witnesses in mitigation of his alleged 

contempt to make amends with the court before the sanction was selected and imposed. Instead, 

he was found in “willful” contempt through a summary judgment procedure, based solely on

evidence in the record, and denied any opportunity to put on evidence or challenge evidence

offered by Debra in a trial-like evidentiary hearing. Thus, the unconditional criminal contempt 

sanction imposed by the district court was plainly entered in error.

Due to the unique and reflective nature of non-summary contempt proceedings, we 

cannot simply remand this matter back to the district court to enter an appropriate sanction. Not 

only was there no affirmative finding by the district court of Steven’s “present” ability to comply 
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with the Oregon Contempt Judgment as would be required to impose a “civil” sanction, but the

record is also devoid of any showing that the rights attendant to a criminal proceeding were ever 

provided to Steven. Additionally, as explained further below, the summary judgment procedure 

used by the district court to adjudicate Steven’s alleged contempt was also in error. 

B. Idaho Rule of Civil Procedure 75 requires non-summary contempt proceedings to 

be adjudicated through a trial, unless the alleged contemnor is in default.

Consistent with Idaho Rule of Civil Procedure 75(c), Debra commenced the underlying 

contempt proceeding by filing a “Motion/Charge for Non-Summary Contempt Against 

Defendant Steven Abell,” along with supporting factual allegations outside the pleading. Debra’s

motion contained one charge of contempt: Steven’s alleged willful failure to comply with the 

payment terms in the Oregon Contempt Judgment. In the Oregon Contempt Judgment, entered 

roughly one year and two months earlier, Steven was found in contempt for failure to pay 

outstanding spousal support to Debra, and found to have the present ability (at that time) to 

purge himself of his contempt. The Oregon circuit court gave Steven 60 days to purge his 

contempt, and ordered, among other things, a conditional “civil” penalty of $1,000 to be imposed 

every 30 days if he did not purge his contempt within 60 days. 

Roughly one month after Debra filed her Idaho motion for contempt, the district court 

held an “arraignment” hearing. Steven appeared pro se, and responded to the court’s questions, 

indicating that he was “contesting” the new charge of contempt. The district court as well as 

Debra in her later briefing, treated Steven as entering a general denial to the charge, and the 

matter was set for trial roughly one and a half months out. Fourteen days after the arraignment 

hearing, after Steven had made no filings, Debra filed a “Motion for Judgment on the Pleadings” 

under Idaho Rule of Civil Procedure 12(c) and argued that based on the evidence in the record, it 

was undisputed that Steven was “again in contempt” for failing to comply with the payment 

terms of the Oregon Contempt Judgment. 

Debra argued, in addition to her collateral estoppel argument, that Steven had waived any

affirmative defenses to the new contempt charge by failing to “file and serve a written response 

within 7 days after entering a plea denying the contempt charged” as required by Idaho Rule of 

Civil Procedure 75(h)(1). Debra essentially contended that the finding of Steven’s then-present 

ability to comply found in the Oregon Contempt Judgment collaterally estopped Steven from 

now employing the affirmative defense to a criminal sanction that Steven was “unable to comply 
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with the court order at the time of the alleged violation,” I.R.C.P. 75(h)(1)(A). Debra further 

contended that this affirmative defense, as well as the affirmative defense to a civil sanction that 

Steven may have lacked “the present ability to comply with” the Oregon Contempt Judgment, 

I.R.C.P. 75(h)(1)(B), were both precluded by waiver. From this, Debra claimed she was entitled 

to judgment as a matter of law that Steven was in contempt, and that a “civil” sanction of 

conditional incarceration be imposed until he complied with the Oregon Contempt Judgment. 

To be clear, although the parties and the district court below spoke in terms of Debra 

moving for “judgment on the pleadings” under Rule 12(c), her motion here is properly 

understood as a motion for summary judgment under Rule 56. “If, on a motion under Rule 

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, 

the motion must be treated as one for summary judgment under Rule 56.” I.R.C.P. 12(d); Syringa

Networks, LLC v. Idaho Dep’t of Admin., 159 Idaho 813, 823, 367 P.3d 208, 218 (2016). Indeed,

Rule 75(c) required Debra to charge contempt by relying on matters outside her pleading and the 

charge itself, which she did by incorporating her declaration, the Dissolution Judgment, the 

Oregon Contempt Judgment, the Oregon Supplemental Judgment, and the other domesticated 

Oregon judgments which were consolidated into the underlying proceeding. Thus, Debra’s 

motion here is properly understood as a motion for summary judgment.

Four days after Debra moved for summary judgment, counsel appeared for Steven. That 

same day, Steven’s counsel entered a formal denial for Steven on the charge. Steven’s counsel

also noted that Steven intended to assert the two affirmative defenses under Rule 75(h)(1)(A) and 

(B) that Debra had argued were barred by collateral estoppel or otherwise waived. Seven days 

later, Steven’s counsel responded to Debra’s motion for summary judgment, and argued that 

Steven’s general denial of contempt at the arraignment hearing summarily defeated her motion

as his denial presented a genuine dispute of material fact that must be resolved through a trial. 

Four days later, Steven’s counsel formally requested leave of the district court under Rule 

75(h)(1) to assert Steven’s two untimely affirmative defenses to criminal and civil sanctions. 

Two days later, at a hearing on April 28, 2022, and apparently relying only on the 

evidence already offered by Debra in the consolidated record, the district court granted Debra’s 

motion for summary judgment and at the same time denied Steven’s motion for leave to assert 

the two affirmative defenses to criminal and civil sanctions under Rule 75(h)(1)(A) and (B). The 

district court ordered Debra’s counsel to prepare a written order, which ultimately reflected that 
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the district court had found Steven in contempt because he had “willfully refused to comply with 

the spousal support payment terms ordered in the Oregon Contempt Judgment[.]”

On May 2, 2022, four days after the hearing at which Debra had been granted summary 

judgment on her new charge of contempt against Steven, counsel for Steven notarized—and 

Steven executed—a “Postnuptial Agreement” between Steven and his second wife, Pamela. The 

Postnuptial Agreement appears to have been “made” roughly two weeks earlier—on April 15—

the same date Steven’s counsel appeared. Yet, the Postnuptial Agreement was apparently held on

to and not executed until four days after the grant of Debra’s summary judgment motion.

The Postnuptial Agreement purports to transfer all of Steven’s community property 

interests in real property, wages, income, earnings, and retirement benefits acquired during the 

marriage to Pamela, as her sole and separate property, in an alleged attempt to avoid Debra’s

ability to collect on the Oregon Contempt Judgment, or any further judgment. 

Two assets purported to be part of Pamela’s “sole and separate” property were a 

retirement account and an Idaho residence purchased in March 2019, one month before Steven 

stopped paying Debra spousal support, with an estimated combined value of $900,000. Based on 

a declaration from Debra’s attorney, the Postnuptial Agreement was first produced at Steven’s

debtor’s exam on May 4, 2022, six days after the hearing granting Debra’s motion for summary 

judgment, and two days after the Postnuptial Agreement was executed. Although the exact

amount owed—after accounting for Steven’s partial payment in March 2022, the $1,000 

recurring civil fine underlying the Oregon Contempt Judgment, and the overall accrued 

interest—is unclear, by the date of the debtor’s exam, Debra alleged Steven still owed her

$139,892.58 in unpaid spousal support.

Setting the circumstances of the Postnuptial Agreement aside, we must recognize the 

procedural errors underlying the proceedings below. Steven was not permitted to present 

evidence or testimony in his defense or in mitigation of his found contempt before or after 

summary judgment was imposed, including during the hearing on the motion to reconsider. The 

district court found Steven in contempt, and imposed a criminal sanction, based only on evidence 

in the record—not live testimony and proffered evidence. Although Steven appeared at the 

arraignment hearing and was not in default, he was found guilty of criminal contempt without a 

trial, and criminally sanctioned without the opportunity to present a defense, put on evidence or 

testimony at a hearing, or cross-examine witnesses.
14

Contrary to this procedure, when a defendant is not in default, and there is a general 

denial by the defendant to the charge of non-summary contempt, Idaho Rule of Civil Procedure

75 requires any finding of contempt and any sanction to be reached through a trial. Regardless of 

whether the proceeding is ultimately criminal or civil in nature, nothing in Rule 75 allows for an 

adjudication of non-summary contempt through a summary judgment procedure.

As Rule 75 explains, if a defendant denies a charge of non-summary civil or criminal 

contempt, “the matter must be set for a trial.” See I.R.C.P. 75(g)(2) (emphasis added). The 

defendant also “must be given at least 14 days to prepare for trial, unless otherwise ordered by 

the court.” Id. In non-summary civil or criminal contempt proceedings, at the defendant’s “first 

appearance” to answer the charge, the trial court is also required to inform the defendant of, 

among other things, the “right to a trial” and “right to confront witnesses” against him,

“including watching the witnesses testify in court and questioning them[.]” See I.R.C.P. 

75(f)(1)(D), (E). Indeed, the record does not reflect that Steven was advised of any of his rights 

as listed in Idaho Rule of Civil Procedure 75(f)(1)(A)–(F). Otherwise, as set out in Rule 

75(f)(1)(D), contempt sanctions are only permitted in non-summary proceedings if the defendant

either admits to the contempt, “or is found in contempt following a trial.” I.R.C.P. 75(l)

(emphasis added).

Rule 75 does incorporate other rules of civil procedure—but only to the extent those 

other rules are “not in conflict” with Rule 75. See I.R.C.P. 75(n). Apart from Rule 75’s clear

mandate for a trial to make findings and impose any sanctions for contempt, the expedited trial 

timeline Rule 75 calls for also conflicts with the timing posture typically required of summary 

judgment motions under Rule 56, where Rule 56 motions “must be filed at least 90 days before 

the trial date, or filed within 7 days from the date of the order setting the case for trial, whichever 

is later, unless otherwise ordered by the court.” See I.R.C.P. 56(b)(1), (2). Rule 75(g)(2) allows 

for trial on a non-summary contempt charge in as little as fourteen days—while Rule 56 

generally requires the summary judgment “motion, supporting documents and brief” to be served 

at least twenty-eight days before the date of the hearing. Accordingly, the summary judgment

procedure under Rule 56 plainly does not apply, and cannot be employed, to adjudicate nonsummary civil or criminal contempt under Rule 75.

Unless contempt charges are brought under Idaho Code section 18-1801 or another 

criminal statute, Rule 75 provides the governing roadmap for all civil and criminal non-summary 
15

contempt proceedings. See Hon. Daniel T. Eismann, Contempt-the Basics and More, 51 The 

Advocate 13, 14–15 (Oct. 2008). Anticipating the reflective nature of non-summary contempt

proceedings, Rule 75 plots a course for what protections and process must be afforded the 

alleged contemnor to allow the trial court, at the conclusion of the proceeding, the latitude to 

impose a criminal or civil sanction, or both, in its discretion. See Camp, 137 Idaho at 864, 55 

P.3d at 318. Because the character of a non-summary contempt proceeding is defined at its

conclusion, all involved should remain mindful of what process and protections are afforded the 

alleged contemnor along the way before a court can properly exercise its discretion in imposing a

particular sanction(s). See id.

For example, if an unconditional (criminal) sanction is ultimately imposed, there must be 

a finding of willful contempt “proved beyond a reasonable doubt” when the alleged contempt is 

“[d]isobedience of any lawful judgment, order or process of the court.” I.R.C.P. 75(j)(2); Camp, 

137 Idaho 860–61, 55 P.3d 314–15; I.C. § 7-601(5); see In re Weick, 142 Idaho at 281, 127 P.3d

at 184. Notably, the party bringing the contempt charge must prove that the contemnor willfully 

failed to comply with the court order, but the charging party is not required to disprove the 

contemnor’s potential affirmative defense of a then-existing inability to comply with the court 

order. Id. at 282, 127 P.3d at 185; see I.R.C.P. 75(h)(1)(A).

Furthermore, if a criminal sanction is to be imposed, “the court cannot exclude evidence 

in mitigation” from the defendant. Cooke v. United States, 267 U.S. 517, 538 (1925); see 

I.R.C.P. 75(b)(2)(B), (l)(2). Regarding such evidence, a trial court may take into consideration 

“[1] the extent of the willful and deliberate defiance of the court’s order, [2] the seriousness of 

the consequences of the contumacious behavior, [3] the necessity of effectively terminating the 

defendant’s defiance as required by the public interest, and [4] the importance of deterring such 

acts in the future.” United Mine Workers of Am., 330 U.S. at 303.

On the other hand, if a conditional (civil) sanction is ultimately to be imposed on the 

same grounds for contempt under section 7-601(5), there must be a finding of willful contempt 

by a preponderance of the evidence, and a finding “that the contemnor has the present ability to 

comply with the order violated, or with that portion of it required by the sanction.” I.R.C.P. 

75(j)(1) (emphasis added). Unlike a criminal sanction, a trial court can “impose a civil contempt

sanction only if the contemnor [has] the present ability to comply with the order violated.” Camp, 

137 Idaho at 865, 55 P.3d at 319 (emphasis added). Without this finding, any imposed 
16

sanction—even if labeled conditional—necessarily becomes unconditional and criminal in 

nature. If the contemnor cannot presently comply with the order violated, the sanction imposed 

cannot be avoided, and is thereby punitive and will lack the “coercive” characteristic underlying

civil contempt. See McNeil v. Dir., Patuxent Inst., 407 U.S. 245, 251 (1972); Maggio, 333 U.S. 

at 72 (“[T]o jail one for contempt for omitting an act he is powerless to perform would . . . make 

the proceeding purely punitive, to describe it charitably.”).

This simply means “[i]ndividuals unable to [presently] comply, because of their own bad 

faith actions or otherwise, may be subject to criminal sanctions, but may not be held in civil

contempt.” In re Marc Rich & Co., A.G., 736 F.2d 864, 866 (2d Cir. 1984) (emphasis added).

Critically, once an alleged contemnor enters a “plea denying the contempt charged,” the

contemnor is allowed seven days to file and serve all affirmative defenses to civil or criminal 

contempt, “unless otherwise ordered by the court.” I.R.C.P. 75(h)(1). Two of those affirmative 

defenses impact the trial court’s latitude in permissibly imposing a criminal or civil sanction. 

First, relevant to criminal sanctions, a contemnor might allege that he was “unable to comply 

with the court order at the time of the alleged violation[.]” I.R.C.P. 75(h)(1)(A). This affirmative 

defense can only avoid the imposition of an unconditional (criminal) sanction, and under it, the

contemnor “bears the burden of producing evidence that creates a reasonable doubt as to his 

ability to comply.” In re Wick, 142 Idaho 275, 282, 127 P.3d 178, 185 (2005). Notably, the 

contemnor may rely on his Fifth Amendment privilege against compulsory self-incrimination to 

decline questions, but that privilege is not a “sword whereby [the contemnor] asserting the 

privilege would be freed from adducing proof in support” of carrying his burden of production. 

See United States v. Rylander, 460 U.S. 752, 758 (1983).

Second, relevant to civil sanctions, a contemnor might allege that he lacks “the present 

ability to comply with the court order” violated. I.R.C.P. 75(h)(1)(B). To prevent a civil sanction 

from being imposed, the contemnor carries the burden of proving this affirmative defense by a 

preponderance of the evidence. I.R.C.P. 75(h)(2). The contemner also carries the burden of 

producing evidence to establish his present inability to comply. See Rylander, 460 U.S. at 757; 

Maggio, 333 U.S. at 75; U.S. ex rel. Thom v. Jenkins, 760 F.2d 736, 739–40 (7th Cir. 1985). The 

contemnor’s burden to prove this affirmative defense is not met if the contemnor offers no 

evidence in the proceeding as to his present inability to comply, “stands mute,” or simply relies 

on “his own denials which the court finds incredible[.]” Maggio, 333 U.S. at 75–76.
17

Nevertheless, to impose civil sanctions at all, due process still requires that the 

contemnor, at a minimum, be offered a meaningful opportunity to present testimony and 

evidence regarding his present inability to comply with a court order. See Donovan v. Mazzola, 

716 F.2d 1226, 1240 (9th Cir. 1983); Thomas, Head & Greisen Emps. Tr. v. Buster, 95 F.3d 

1449, 1458–59 (9th Cir. 1996); In re Icenhower, 755 F.3d 1130, 1138–39 (9th Cir. 2014); 

Citronelle-Mobile Gathering, Inc. v. Watkins, 943 F.2d 1297, 1304 (11th Cir. 1991). Some 

courts are satisfied, in limited circumstances, with allowing civil contempt sanctions based solely 

on affidavits or declarations, and no trial-like hearing. See, e.g., In re Icenhower, 755 F.3d at 

1139; Peterson v. Highland Music, Inc., 140 F.3d 1313, 1324 (9th Cir. 1998). However, as 

explained above, this is not the rule in Idaho. Rule 75 requires that the meaningful opportunity to 

present such facts be afforded through a trial—not summary judgment. 

Accordingly, if the contemnor is precluded by the trial court from offering evidence of a 

present inability to comply because that affirmative defense is deemed waived under Rule 

75(h)(1), a civil sanction for contempt necessarily becomes unavailable. This is because for a 

civil sanction to be available, the trial court must find by a preponderance of the evidence “that 

the contemnor has the present ability to comply with the order violated, or with that portion of it 

required by the sanction.” I.R.C.P. 75(j)(1), (k). Waiver alone cannot serve as a placeholder for 

an affirmative finding of fact required by Rule 75. 

More importantly, due process cannot permit a finding of fact adverse to the contemnor 

by virtue of waiver—and not substantial evidence—when the contemnor was also denied any

meaningful opportunity at trial to overcome it. Cf. Clayson v. Zebe, 153 Idaho 228, 232, 280 

P.3d 731, 735 (2012) (explaining the standard of review that findings of fact following a bench 

trial must be supported by substantial evidence). Otherwise, conditional sanctions could pass as 

civil in name only, while in substance be wholly punitive and arbitrarily imposed. Cf. Neighbors

for a Healthy Gold Fork v. Valley Cnty., 145 Idaho 121, 127, 176 P.3d 126, 132 (2007)

(“Procedural due process requires some process to ensure that the individual is not arbitrarily 

deprived of his or her rights in violation of the state or federal constitutions.”).

“Contempt proceedings are quasi-criminal in nature[,]” Matter of Williams, 120 Idaho

473, 476, 817 P.2d 139, 142 (1991), and the contemnor’s liberty interest is always at stake 

because incarceration could be imposed as either a civil sanction, I.C. § 7-611, or a criminal

sanction, I.C. § 7-610. Therefore, if a contemnor is barred from raising the affirmative defense of 
18

a present inability to comply with the order violated under Rule 75(h)(1)(B) due to waiver, the 

only potential sanction later allowed by due process is a criminal one. Thus, to avoid becoming 

hamstrung into imposing a criminal sanction, leave to permit untimely affirmative defenses in 

contempt proceedings should be “freely given” by trial courts “when justice so requires.” See 

I.R.C.P. 15(a); West v. El Paso Prods. Co., 122 Idaho 133, 135, 832 P.2d 306, 308 (1992).

In the instant case, the district court erred in finding Steven in willful contempt of the 

Oregon Contempt Judgment through a summary judgment procedure, instead of a trial as

required by Rule 75. In light of this procedural error, and the added error of imposing a criminal 

sanction without the protections required as discussed above, the proceedings on Debra’s 

contempt charge must start anew on remand, from the initial pleading stage.

For this reason, we also do not reach Steven’s assignment of error on appeal regarding

the district court’s decision to deny him leave to assert civil and criminal affirmative defenses 

under Rule 75(h)(1)(A) and (B). The issue of whether to grant Steven leave to assert affirmative 

defenses may be revisited on remand if it arises again after the pleadings are closed, and the 

timing for raising affirmative defenses has expired. In that instance, if the district court decides

to deny Steven leave to assert the affirmative defense to a civil sanction under Rule 75(h)(1)(B), 

then consistent with the principles above, the court must recognize that doing so limits it to 

imposing only a criminal sanction, through the process and protections required by Rule 75 and 

the federal constitution. See Camp, 137 Idaho at 860, 55 P.3d at 314.

Finally, in light of the decisions above, Steven’s assignment of error regarding his motion 

for reconsideration challenging the grant of Debra’s motion for summary judgment is moot.

C. Because a new trial is ordered, the parties may file a motion for disqualification of 

the presiding district judge on remand under Idaho Rule of Civil Procedure 

40(a)(5).

Steven also requested that a new district judge be assigned on remand. In support of his

request, Steven asserts, without citations to the record, a cogent argument, or supporting 

authority, that the presiding district judge was “contemptuous” and “dismissive.” We will not 

order a new district judge to be assigned when Steven’s briefing on this issue does not comply 

with Idaho Appellate Rule 35(a)(6). See Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 

1152 (2010). Nevertheless, this does not preclude Steven—or Debra—from moving to disqualify

the presiding district judge after remand.
19

“After a trial has been held, if a new trial is ordered by the trial court or by an appellate 

court, each party may file a motion for disqualification without cause of the presiding judge”

within the time limits set forth in Rule 40(a)(1). I.R.C.P. 40(a)(5) (emphasis added). Here, a triallike proceeding should have initially been held by the presiding district judge as required by Rule

75—but was not. We are ordering a new trial to occur on remand, after what was effectively a

fundamentally defective “trial” proceeding below, within the language of Rule 40(a)(5). Because 

of this, either Steven or Debra, if they so choose, may properly move to disqualify the presiding 

district judge under Rule 40(a)(5) after remand, without needing to show cause.

D. Attorney Fees Below and on Appeal

Steven and Debra both request attorney fees on appeal under Idaho Code section 7-610.

Section 7-610 provides that in a contempt proceeding, “the court in its discretion, may award 

attorney’s fees and costs to the prevailing party.” See Bald, Fat & Ugly, LLC v. Keane, 154 

Idaho 807, 812, 303 P.3d 166, 171 (2013). Here, Debra did not prevail on appeal; thus, she is not 

entitled to an award of fees on appeal. As for Steven, he prevailed on appeal to the extent he can 

now re-litigate Debra’s contempt charge on remand—but he has not ultimately prevailed in this 

contempt proceeding. “Where there is no present prevailing party, this Court has refused to 

award attorney’s fees.” Portfolio Recovery Assocs., LLC. v. MacDonald, 162 Idaho 228, 236, 

395 P.3d 1261, 1269 (2017). Consistent with this principle, and our discretion regarding fees 

under section 7-610, if Steven is ultimately the prevailing party below after remand, then the trial 

court may award him attorney fees for this appeal.

In addition, because we are vacating the judgment of contempt and the decisions 

underlying the contempt proceedings, we must also vacate the award of attorney fees and costs 

made below to Debra because she is not yet a “prevailing party” under section 7-610. See Camp, 

137 Idaho at 866, 55 P.3d at 320. Although Debra is not entitled to fees for this appeal, if she

ultimately prevails in her contempt charge against Steven on remand, then the district court may, 

in its discretion under section 7-610, award Debra reasonable attorney fees and costs for the 

entire proceedings below, i.e., the proceedings pre- and post-appeal.

Steven also requests attorney fees on appeal under Idaho Code section 12-121, arguing 

Debra’s entire defense of this appeal was frivolous, unreasonable and without any foundation.

However, “attorney fees may not be awarded under Idaho Code section 12-121 when the case 

involves an issue of first impression.” Erickson v. Erickson, 171 Idaho 352, 371, 521 P.3d 1089, 
20

1108 (2022). The instant appeal answered questions of first impression regarding the proper 

procedure for non-summary contempt proceedings under Idaho Rule of Civil Procedure 75.

Moreover, as explained above, other jurisdictions—contrary to Idaho’s approach under Rule 

75—allow non-summary contempt to be adjudicated through summary judgment in limited 

circumstances, similar to the procedure employed below and defended by Debra on appeal. See, 

e.g., Peterson v. Highland Music, Inc., 140 F.3d 1313, 1324 (9th Cir. 1998). Thus, Steven is not 

entitled to fees on appeal under section 12-121 because Debra’s “entire” defense of this appeal 

was not frivolous, unreasonable, or without foundation. See Thomas v. Madsen, 142 Idaho 635, 

639, 132 P.3d 392, 396 (2006).

IV. CONCLUSION

For the reasons set forth above, the judgment of contempt against Steven is vacated, the 

district court’s decisions underlying its judgment of contempt are also vacated, and this case is 

remanded for further proceedings that must begin anew, at the initial pleading stage. Steven is 

awarded costs on appeal under Idaho Appellate Rule 40(a).

Chief Justice BEVAN, and Justices STEGNER, MOELLER, and ZAHN, CONCUR.